Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Eleonora Rosati, Annsley Merelle Ward, Neil J. Wilkof, and Merpel. Nicola Searle is currently on sabbatical. Read, post comments and participate! E-mail the Kats here

The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy

Tuesday, 10 May 2016

It has been quite a long while since Merpel visited the European Patent Office. She would like to apologise to those readers who have wanted more frequent updates, and thank those who have sent her news over the last couple of months. There have been quite a few developments, to which she will now turn her attention. Since many of these issues have now been ongoing for some time, she will briefly summarise the background of each one.

Boards of Appeal - disciplinary case
There are two issues relating to the Boards of Appeal. First is the suspension of a member of the Board of Appeal by the Administrative Council, following the imposition on him of a "House Ban" by the President all the way back in December 2014. Many (including almost all internal members of the Enlarged Board of Appeal Appeal and many distinguished external members - see IPKat post here) considered that the "House Ban" contravened the EPC, since only the Administrative Council can exercise disciplinary authority over a Board of Appeal member, but the position was somewhat regularised by the AC's later action. Later, the Service Regulations were amended by the Administrative Council last December, so that Board of Appeal members can be suspended pending disciplinary proceedings for up to two years, rather than four months as was previously the case (and is still the case for normal EPO employees).

The removal from office of a Board of Appeal member requires a proposal from the Enlarged Board of Appeal. The EPO has now twice petitioned the EBA for such a proposal. The first was rejected as inadmissible (See IPKat here). The second case (given the unusual number "Art 23 2/15", indicating that it is a proceeding pursuant to Article 23 EPC) has terminated in a Decision of 11 February 2016 that is rather inconclusive. All of the admissible requests made to the Enlarged Board were withdrawn, while further requests will apparently be considered as a further reference - now the third related to the matter. The Decision states it is to be published, but Merpel has not yet seen an official publication of it by the EPO. Furthermore, Merpel wonders how many more opportunities the administration is going to have to put its case to the EBA while following the norms of natural justice.

Boards of Appeal - reform
There is general agreement that the Boards of Appeal of the EPO need some organisational reform. Most see the main issue as being perception of independence from the rest of the EPO structure, given the quasi-judicial role of the Boards in reviewing EPO decisions and actions. However, the proposal from the President of the EPO to reform the Boards was widely criticised, both for some of the specific details (some of which were considered to be incompatible with the EPC), and for the overall approach, which conflated independence with efficiency and seemed fixated on moving the Boards to another physical location. Moreover, the Boards of Appeal were themselves not consulted during the drawing up of the proposals. At the Administrative Council meeting of 16 and 17 December 2015, these proposals were not adopted; instead the AC mandated its own sub-group "Board 28" to elaborate guidelines to take the reform project forwards. After a falling-out between the President and Board 28, at the March meeting of the Administrative Council, the President was asked to formulate proposals based on these guidelines (see the text of the AC Resolution below) for consideration at the June AC meeting. We await details of what these proposals are.

The Boards of Appeal have put forward their own proposals for reform, and you can read the history of the reform from the point of view of the Boards on the website of their organisation AMBA. Merpel understands that the Boards have NOT been consulted even in the latest re-formulation of a proposal for reform.

Merpel understands that the President is still fixated on the idea that the Boards need to be in a different building from the rest of the EPO, although now the idea is that it will be in another location in Munich, not another city altogether such as Vienna. The Munich suburb of Garching, halfway out to the airport, is the latest rumour. The motivation to move the Boards from their current location seems odd since the justification is that the members of the Boards should not be mingling with the first instance Examiners whose decisions they are reviewing. But the Boards largely work in the Isar building, whereas the Examiners work almost exclusively in the PschorrHöfe buildings. The main other occupant of the Isar building is the President...

Boards of Appeal - resourcing
The original proposals for reform of the Boards of Appeal presupposed that they have an issue with efficiency. These turned out to be based on misleading comparisons. While the Boards themselves agree that something has to be done about the growing backlog of appeal cases (estimated at about 8000 cases), and some increase in efficiency probably needs to be part of that, most of the respondents to the EPO's own consultation on reform of the Boards of Appeal emphasised that the reform and any efficiency increases need to be considered together. A more pressing issue in the ability of the Boards to deal with the caseload was that for some considerable period no new appointments had been made, and reappointments left to the very last minute (this raising concerns that the delay in reappointment could be used to make Board members more biddable in the meantime). Precise numbers are a little difficult to establish, but by March 2016, Merpel understands that no new appointments had been made for about 2 years, 7 Boards lacked a chairman and about 13 technical board member positions were vacant. Finally, a few new appointments (2 chairmen and 3 technical members) were made at the March 2016 meeting of the Administrative Council. Apparently the President denies that there has been any issue with the levels of staffing of the Boards, and considers that since he agreed to the creation of a new Board, the Boards have been "expanded"; it is to him apparently immaterial that this "expansion" is more than offset by the number of vacant positions and Merpel understands that this new Board was never in fact filled. Merpel very much hopes that the Boards will continue to be fully staffed.

Social situation at the EPO
Also at the March 2016 meeting the AC expressed in the strongest terms so far its displeasure at the handling by the President of the social situation at the EPO, where there is much unrest amongst the employees about changes to career progression, working policies, sick policy, imposed essentially without consultation. The following resolution was adopted, so remarkable in its wording that Merpel wishes to reproduce it in full:

The AC,
in its capacity as supervisory organ of the EPOrg -

having repeatedly expressed its deep concerns about the social unrest within the EPOffice;
having repeatedly urged the EPOffice President and the trade unions to reach a consensus on an MOU which would establish a framework for negotiation between social partners;
noting that disciplinary sanctions and proceedings against staff or trade union representatives have, among other reasons, made it more difficult to reach such a consensus;
noting that these disciplinary sanctions and proceedings are widely being questioned in the public opinion;
recalling the importance and the urgency of the structural reform of the BOA;
recognizing the important institutional role of the AC and its dependence on a well-resourced and independent secretariat;

Calls on both parties to the social dialogue to recognize their responsibilities and to work diligently and in good faith to find a way forward, and:
Requests the EPOffice President -

to ensure that disciplinary sanctions and proceedings are not only fair but also seen to be so, and to consider the possibility of involvement of an external reviewer or of arbitration or mediation
pending the outcome of this process and before further decisions in disciplinary cases are taken, to inform the AC in appropriate detail and make proposals that enhance confidence in fair and reasonable proceedings and sanctions;
to submit to the AC a draft revision of the Staff Regulations which incorporates investigation guidelines (including the investigation unit) and disciplinary procedures which have been reviewed and amended;
to achieve, within the framework of the tripartite negotiations, an MOU simultaneously with both trade unions, which would have no pre-conditions or exclude any topics from future discussions;
to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for immediate implementation of the structural reform of the BOA, on the lines of the 5 points agreed by the AC at its December 2015 meeting and of the legal advice given by Prof. Sarooshi, and taking into account comments from the Presidium of the BOA;
to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for reinforcement of the AC secretariat and a clarification of its position in terms of governance.

Requests the staff representation and the Trade Unions -
to acknowledge the importance of firm and fair disciplinary procedures; and to respond constructively to the initiatives set out above, in particular to work rapidly to an agreement on Union recognition without preconditions.

Other calls to action have been received from a number of French MPs - recently Philip Cordery, Pierre-Yves Le Borgn', Richard Yung, Claudine Lepage, Jean-Yves Leconte and Hélène Conway-Mouret wrote to the French Minister of Economic Affairs Emmanuel Macron to " demand once again that France take
action towards a reform of the management of this international organization.
"

Disciplinary action against staff representatives

The "disciplinary sanctions and proceedings against staff or trade union representatives" in the above resolution refers to the fact that three of the 10 staff representatives have been singled out for disciplinary proceedings, resulting in the sacking of two and the downgrading of another in January 2016. Merpel understands that two others are also facing disciplinary proceedings. One of the staff representatives who was dismissed, Elizabeth Hardon who is the chair of SUEPO Munich, additionally had her pension docked; however this further sanction was removed following an internal appeal.

Recognition of SUEPO

Just before the March 2016 AC meeting, the EPO signed a Memorandum of Understanding with one of the EPO unions, FFPE-EPO. But, as reported by the IPKat here, that union is tiny and mostly exists only in the Hague. The AC resolution quoted above calls on both the President and the main EPO union SUEPO to work to "agreement on Union recognition without preconditions."

Here, there has been not much progress. In fact, almost immediately after this there was an official strike on 7 April 2016 (having passed the rather high hurdle for a strike to be permitted at all under the Strike Regulations). The vote in the strike ballot was overwhelming - 4062 voters (60% of the total EPO employees), of which 3701 in favor of the strike (91%). The strike participation was also high - 2078 full day and 579 half days: 2657 in total. The official strikes are rather rare, since they rely on the President approving a strike ballot. In between official strikes, demonstrations are quite frequent, and there is to be a further one on 11 May in Munich.

SUEPO is not prepared to sign an MoU along the lines of that signed by FFPE-EPO; its counter-proposal has been disregarded. It is hard to see how the EPO administration can negotiate with SUEPO when the chair and vice-chair of SUEPO Munich have been dismissed and the chair currently banned from EPO premises. Another fundamental sticking point is that SUEPO wishes to revisit the controversial reforms from the last few years, while the administration wants to have those accepted and confine discussions to future reforms.

Investigation Unit

One of the most controversial aspects of the current functioning of the EPO is the "Investigation Unit" which conducts internal investigations (sometimes also using external investigation companies such as Control Risks) into staff conduct under "Circular 342", which came into effect in January 2013. During such investigations, failure to cooperate is itself a disciplinary offence (so no right to silence), and no legal representation is permitted. Here at least there is some progress - the President has started a review of the functioning of the Investigation Unit, and SUEPO has provided its comments. Merpel will cast her last piece of hope that this review may lead to a disciplinary procedure that does not offend basic principles of due process.

In the meantime, reports of the contracts recently signed by the EPO refer to 6 contracts with 6 individuals to provide "Close Protection" because of "increased security requirements", at a reported cost of €550,000 for 6 months. Merpel is astonished that senior EPO management are considered to be in need of such protection.

Regarding 'close protection', the President himself related the problem of being a Frenchman in a significant position as head of an international organisation - this comment came after the various recent terrorist activities withinFrance (and Belgium). I wouldn't assume that it relates to any internal matters.

By the way, thanks for the update. A bit of a radio silence on the 'discussions' with the June AC approaching but staff reps clearly wary of being too vocal and BB being worryingly quiet. I had hoped that a more open future may have been forced upon BB but you seem to relay a less platonic view. I struggle to believe that the Boards are still kept sidelined. Then again...

Indeed in TH in particular one SUEPO official and central staff rep is currently being hit very hard with a cut of 100% of his remuneration since beginning 2016 by decision of PD 43 (Mrs Bergot the spouse of Battistelli right-arm Requena) who decided to disregard the from his physician duly established medical certificates.

After having abolished occupational disease, Bergot is now abolishing sickness altogether....

No progress on the possible removal from office of the member of the Boards of Appeal, no progress on the reform of the Boards, no consultation of the Boards on the reform, no progress on the social agenda. The removal from office would, under different circumstances, merit a good laugh. It is probably hard to find a comparable level of incompetence, in particular in such a delicate matter.

In the meantime, the EPO continues to infringe on Human Rights, as decided by an appeal court in the Netherlands back in February 2015 [sic]. SUEPO obtained that judgment, the EPO is challenging it, and the Vice President DG1 (search, examination and opposition) stated on Dutch TV that a judgment against the EPO would in all likelihood be ignored. SUEPO shall nevertheless sign a memorandum of understanding accepting the regulations in question.

The Administrative Tribunal of the International Labor Organization (ILO-AT), the only external “court” to which EPO officials can turn, has raised serious concerns about EPO governance. ILO-AT is drowning with EPO cases, impeding its ability to serve as tribunal for other organizations.

All things considered, the current President continues to apply his “all or nothing” strategy. Escalation is followed by further escalation. It is hard to imagine that the current situation will improve under this President.

"Merpel is astonished that senior EPO management are considered to be in need of such protection.,,,,"

Why are you astonished Merpel? Have you not been reading the comments on your own blog over these last few years? These people are so far up their own backsides,,,,they lost touch with reality so long ago,,,, However I can understand their insecurity, It's pretty easy to imagine a scenario whereby somebody kidnaps an EPO VP or PD and sends a ransom note along the lines of "we have kidnapped a senior member of your EPO management - pay us 10 Euros in cash or we will send them back"

The Convention Watchdog said:SUEPO’s document on the Investigation Guidelines illustrates the pressure exercised on EPO staff including members of the Boards of Appeal. However, there seems to be little hope that the Administrative Council is willing to change the situation. In its communique of its meeting in October 2015, the Administrative Council saw no reason to doubt that the general principles of law were correctly applied throughout the investigative and disciplinary procedure against a member of the Boards of Appeal. In its March meeting, the Council could not agree on a resolution insisting on an external review of the actions taken against staff representatives based on the results of the Investigation Guidelines and exceeding even the proposals of the Disciplinary Committee. Instead, the Council eroded the personal independence of Board members by allowing suspension as a preliminary measure for a period of 2 years and even longer, i.e. for an essential part of the appointment period. This amounts to a temporary removal from office which makes Article 23 of the Convention meaningless, ignoring the exclusive competence of the Enlarged Board of Appeal to propose removal from office.

according to my info the bodyguards are precisely for within the EPO (contrary to the troll assertion above).

In the outside world no one knows Battistelli, Bergot al. And as to the real risks: the EPO is only the targetted by Greenpeace coming once in a while with a banner on the facade or the like.

Do not forget that Battistelli sees "ennemies from within" (the insulting title of an interview he gave to the epo friendly Les Echos (FR in the past).

I also heard that first the epo wanted the sheriffs with weapons before to finally accept them without. A top management who needs to be protected from its workforce says a lot about the level of tensions reached.

Is it really necessary to call somebody a paid troll for pointing out the obvious?

Of course jihadists are unlikely to be aware of Mr. Battistelli's existence, never mind hatch any scheme against it. However, Mr. Battistelli himself, who has a notoriously inflated opinion of his own importance, probably doesn't see things like that, and may even be convinced that offing him would be ISIL's biggest success since the fall of Mosul.

Logic does not seem to enter into these recent "security" precautions, an example being the need for representatives to demonstrate to security staff that the contents of their brief cases contain nothing more threatening than a ring-binder. I wonder what they would do if in a hearing concerning, say, a patent for an arrow tip, the rep. was to bring examples to the hearing.

Also I read that the EPO's highest paid employee, its President, wants DG3 bundled out of the building in which he has his office.

I conclude that Mr Battistelli in his Isar Building fastness finds inconvenient or embarrassing even the mere presence of any EPO employee, one who is not a member of the coterie he has gathered around himself. Incidentally, is it true, that he has his own private lift, to shuttle him in isolation between the garage and the penthouse suite?

The function of the bodyguards within the EPO is presumably then to keep all other humans a safe distance away from their man, to ensure that the President when in the office never has to even suffer eye contact with any other employee of the EPO.

"The Decision states it is to be published, but Merpel has not yet seen an official publication of it by the EPO."

This point is of little impact on the individual case (the decision has reached the IPkat and the internet after all) but may have wide-reaching implications.

Does it mean that the EPO can disregard the order of a decision of a BoA?

Should we expect in the future that decisions of first istance departments are subject to a review by the BoA only as far as the orders of their decisions please the president?

Maybe next time the EPO could decide to ignore an order to refund the appeal fee or to maintain a biotech patent in an amended form which is "inconvenient" for the EPO.

Apart from these provocative questions it seems to me that the interference of the president in the Boards´decisions and their independence turns out to be a much bigger problem than what has been assumed until now.

Glad to be...Thanks for the observation. I hadn't noticed the second "trolling" comment and have to say I'm not sure who the first one was directed at, let alone with regard to what! I stuck to one factual statement, relevant to the issue of why security is thought by BB (for whatever reason) to be needed, and an expression of my own opinion that my colleagues are not a threat. Not clear how that can be trolling.Perhaps it might be worth considering that an opinion which you don't share is not trolling without further qualification - ironically, the criers appear to imply that their colleagues are such that BB may need protection. Now that would be trolling if I put that idea out there without any justification.To return to my comment - BB thinks he could be a target of terrorists (I have no way of knowing, I hope he is over-egging it out of caution) and I don't think my colleagues, however upset or even distressed, would resort to violence.And if that is still provocative...

SUEPO is right to insist on revisiting the so-called "reforms' (a term which gives the measures a legitimacy they simply don't have; after all "reforms" are always good, aren't they?). The investigation guidelines are one such "reform", as are the measures taken against SUEPO and its officials, the house arrest of sick staff, the unrealistic targets, the promotion rules which reinforce arbitrariness, etc etc. Using the term "reforms" for these measures is not neutral - it is adopting the management's rhetoric, and reinforcing the scenario it would like the public to belief it - that of idle time-serving workers paid too much to do too little. (Extraordinary, therefore, that the EPO's proud reputation over all the years of its existence was built on such a shaky foundation).

A typical management tactic, which pre-dates Battistelli, is to promise to be good in the future, if only the Union will accept the status quo. It is always an empty promise, but it allows the management to seem reasonable and the Union to seem intransigent. SUEPO must and will, I hope resist it.

Interested Attorney asked:Does it mean that the EPO can disregard the order of a decision of a BoA?

The answer is yes, definitely. Should the EBA for instance decide to reject the AC´s late request for dismissal of a judge and decide he should be reintegrated into DG3, the president could simply maintain the house ban he imposed upon him 18 months ago, and there is absolutely nothing anybody could do.

The interference of the president in the Boards´decisions and their independence indeed is a much bigger problem than what has been assumed until now. The legitimacy of the whole EP (and UPC) construction would no longer stand up to scrutiny by a national constitutional court.

For the UPC to be based on the EPO's granting of patents, when the EPO seemingly does not have a Judiciary independent of the Executive, where the Executive of the EPO can apparently ignore the EBA or court judgements, is very worrying.

The UPC/UP will have unprecedented commercial power in the Europe and the world. Patents granted under it must be granted by an organisation that is properly held to account under international law and justice.

Who was it who says ....Power corrupts and absolute power corrupts absolutely.... a notion too far perhaps ... I do hope so and that I worry unduly.

Thank you for the article, Merpel.Just a quick note: the day after it was published that article was already in the top viewed, now it is at the very top. Apparently, this kind of article is very popular... maybe we could have them more often (hint, hint...).

I understand very well how the examiner's deal with unity - if the claim amendments mean they will have to do some more work, they will argue lack of unity. The applicant will either follow the examiner's line through lack of will to fight or will take it to appeal, whereupon the BoA will roundly criticize the examiner and allow the appeal.

If you think examiners routinely invoke a posteriori non-unity 'to get out of doing some work', you obviously don't understand anything about most examiners (or the work involved in invoking Art. 82).

Personally, I find the biggest problem these days (particularly with US-sourced applications) is poor claims structure, where a large number of claims depend directly on an independent claim. As soon as this claim falls, a number of apparent non-unitary subjects will be discovered. Most of these will, hopefully, be trivial or disclosed by prior art. If, however, two or more are non-trivial and appear to be novel, this obviously invites an Art. 82 objection. My own practice is normally to point this out and invite the applicant to file revised claims which deal with the objection. Others will perhaps follow the book of rules more mechanically, forgetting that Art. 82 objections are not mandatory.

L'Angelo, when you refer to a 'poor' claims structure, I think you mean a structure which was not drafted with European unity rules in mind.

The traditional US unity rules are somewhat different from the European rules. The claims structure chosen in a US-sourced application may actually be quite good when considered in the light of those US rules.

Conversely, when a European practitioner files a 'good' European-style claim set at the USPTO, he/she can receive unity objections (a 'restriction requirement' or 'election of species') which seem strange to European eyes.

The differences are related to the fact that the traditional USPTO search materials and classification system are arranged differently to the EPO's. So things that are easy to search together in USA are difficult in Europe, and vice versa.

US examiners have struggled with the unity of European-style claim sets stemming from PCT applications, because for those they are supposed to apply the PCT rules rather than the traditional US rules. For some time, they have had to apply two different standards. To any EPO examiners reading, how would you react if you were supposed to apply US unity rules to US-sourced applications?

I've seen some interesting mental gymnastics from US examiners who wanted to require a US-style restriction or election of species (to make searching easier under the US classification). So they tried to twist the PCT rules into a different shape. It doesn't work.

It remains to be seen what effect the CPC will have. I'm not sure whether the powers-that-be in the USPTO have realised that if they adopt a European-style classification system then they would benefit from European-style unity rules. But that would cause howls of protest from US applicants, who know what claim styles work in US litigation, and would be resistant to change.

Non-unity objections in search have become more popular in the EPO lately, because the internal rules have changed. Examiner have less time to deal with a search (they have larger numbers of searches and examination assigned than the previous years), and non-unity is seen by their directors as a quick way to send the file back to the applicants to be put into order. Or, if the applicants pay extra fees, the directorate figures are increased by the number of extra search fees.

It is one of the many measures of the Battistelli team designed to both lower the level of service and increase the fees.

I wonder why the industry does not complain about the evolution of the European Patent system. Battistelli is saving millions of euros, but the fees do not decrease. The official figures from the budget is that we have 340 millions left last year after we spend 200 millions on the new building and about as much on modernizing our computer system (all the money went to French firms like "Infotel conseil", btw...). This money was entirely paid by the applicants and nobody knows where it will disappear.

The European Patent Office is simply not what it used to be. Examiners are not paid enough for it to be competitive on the Munich work market (Munich is not France where everybody seems to be desperate for a job), so the EPO cannot fill half the posts they want. Work pressure, especially under directors who want to profile themselves, is so high that people are cutting huge corners. The boards of appeal do not work for lack of staff. Staff representatives are dismissed and prohibited entry on the premises and more dismissals are under way. It has never been that bad since the EPO was founded.

I agree with that last posting, from "Concerned Examiner". The Rules have been there since 1978, to discipline recalcitrant applicants. For example, the one that decrees that the consent of the Exam Division is needed, before you can get a second round of amendment admitted. Given the sequential performance at the EPO of search and then substantive examination, of course it was never going to be your right to switch during substantive examination to unsearched subject matter.

The trouble starts though, when management belatedly starts to dragoon examiners into enforcing the Rules rigorously and inflexibly, with no appreciation of user needs.

Of course, there needs to be a balance between i) allowing Applicants to file at the EPO materials drafted in US-style, and ii) expecting Applicants to re-draft, before the end of the Paris Convention year, into EPO style. I recall that G Decision which recognised the need for Applicants, post-filing, to be able to re-draft methods of medical treatment claims into EPC-compliant claims. To deny them that freedom, thought the EBA, would be unfair to such Applicants from outside Europe. Conversely though, you shouldn't be letting such Applicants get away with amendments refused to those Applicants based in Europe.

Time was, when Examiners searched not only what was claimed but also what Applicant would likely fall back on, when all the originally filed claims turn out to be old or obvious. Personally, I haven't yet noticed any general refusal amongst Examiners to examine amended claims that draw from the description but do still claim, albeit more narrowly, the inventive concept that the Applicant was presenting from the outset. Yes, there are rogue Examiners, but there always were. If you want to claim a different concept, file a divisional. That was always what you had to do.

Readers, I think you might find that there is only one jurisdiction which finds the EPC so difficult to understand. Everywhere else in the world, it is nothing special. When working for clients in that one jurisdiction, boy, it sure does help, to have amassed considerable experience so you can understand how they tick. For then you really can help them, by mediating effectively between what they can get under the EPC, and what they mistakenly suppose they are entitled to.

EPO Examiners, I am still your friend. I think you (or nearly all of you) continue to do a thorough, conscientious and competent job, giving Applicants all the help it is within your power to provide, while exercising the Rules in the same way for all Applicants, big or small.

To MaxDrei: unfortunately, I am afraid that you have no felt what is still in the pipe-line. Or maybe, you are active in a technical domain in which the director does not give in to pressure from higher up. But I can assure you that you will not be our friend when the changes have trickled down.Battistelli wants to improve "efficiency". Translation: 20% more grants per year. Last year, the examiners had to send out the easy cases out. This year, most have only the rubbish files left. But they still have to find something to grant or they'll get bad markings. And the reform which has just been announced is that bad markings can get you dismissed for professional incompetence, the dismissal procedure has been streamlined.Some examiners are resisting the push to grant the rubbish files, especially the older ones. Last year, the EPO silently got rid of the most reluctant examiners by pushing them into pension. This year will be different.Basically, the EPO is turning fast into a registration system. That should not be a surprise, coming from a French president, should it? Except that it will be a registration system at the price of an examination system.

Thanks for that reply, Concerned Examiner. It fits with what I gather from all sides.

Power users of the EPO want a pile of patents that is higher than the pile their competitors have amassed. Never mind the quality; instead, feel the weight! BB is only too ready to oblige them. BigCorp negotiates with BigCorp to stay out of the courts of law. Neither side knows what patent strength they really possess. The only thing the negotiators have to go on is how high is their own pile of patents and how high is the pile on the other side of the table.

Whether that is good for promoting technological progress is another thing entirely. Not sure that France can hold itself out to be the world's best jurisdiction for technological innovation. But technological progress is the only thing that can create well-paid jobs, raise living standards and lift prosperity for the masses.

Now, do BB and the other politicians care about those living standards? Or is it just their own living standards, nurtured by the lobbying activities of Big Corp? If you want to see political hypocrisy and willful blindness in action, just look at the Conference on "Corruption" running at the moment in London. English politicians never come to the idea that the City of London is the sump of corruption in Europe, even after they read the most recent issue of The Economist, because they only see what they want to see.

"... I wonder what they would do if in a hearing concerning, say, a patent for an arrow tip, the rep. was to bring examples to the hearing..."

a long time ago , when the so called RAF was active, a private inventor came for an interview at the DPA (DPMA today), he wanted to show his invention, a big gun,he passed the entrance to the DPMA witha an obvious gun satchel, without any problem.

"All or nothing strategy" is the the best description I've heard so far about what is going on at the EPO.

Despite the clear instruction to come to an agreement with both unions, we have heard nothing about an initiative to even begin a conversation with SUEPO. They are still waiting for a response to their proposal of a agreement made a long time ago. My prediction is that the AC members will be told in June that SUEPO, to the great regret of management, simply refused to talk and nothing could be done.

Dear AC members, if you want the truth, SUEPO's willingness to talk with you will without a doubt have few bounds.

The AC requested the EPOffice President: ¨to ensure that disciplinary sanctions and proceedings are not only fair but also seen to be so, and to consider the possibility of involvement of an external reviewer or of arbitration or mediation¨.

The disciplinary sanctions and proceedings were and still are unfair and in conflict with fundamental human rights.Battistelli never will accept a neutral external reviewer or arbitration/mediation because he fears the truth and loses his face. Battistelli only could accept a reviewer/mediator he can choose and have influence on.

The AC requested further: ¨pending the outcome of this process and before further decisions in disciplinary cases are taken, to inform the AC in appropriate detail and make proposals that enhance confidence in fair and reasonable proceedings and sanctions¨ and ¨to submit to the AC a draft revision of the Staff Regulations which incorporates investigation guidelines (including the investigation unit) and disciplinary procedures which have been reviewed and amended¨

Also here happened NOTHING. I am afraid that in the view of Battistelli and his clan the Staff Regulations are okee and not in conflict with fundamental human rights. For him it is not necessary to react to the proposal of the SUEPO because the SUEPO has a total different and unacceptable view of how the Staff Regulations should be. Moreover Battistelli and his team do not want to loose their faces. Faces they have already lost a long time ago.

Indeed Anonymous , the staff regulations we have at the moment, including the investigation guidelines, have been accepted and tolerated by the AC. But NOW there is a clear request of the AC to change the staff regulations ¨to ensure that disciplinary sanctions and proceedings are not only fair but also seen to be so, and to consider the possibility of involvement of an external reviewer or of arbitration or mediation¨. The AC requests also: ¨pending the outcome of this process and before further decisions in disciplinary cases are taken, to inform the AC in appropriate detail and make proposals that enhance confidence in fair and reasonable proceedings and sanctions¨. The AC requests further ¨to submit to the AC a draft revision of the Staff Regulations which incorporates investigation guidelines (including the investigation unit) and disciplinary procedures which have been reviewed and amended¨. It seems to me,but a may be wrong, that the AC wants to see clear defined actions, not just a soufflé full of hot air that collapses as soon as you touch it. The AC realises also that these disciplinary sanctions and proceedings are widely and intensively being questioned in the public opinion.

"a long time ago , when the so called RAF was active, a private inventor came for an interview at the DPA (DPMA today), he wanted to show his invention, a big gun,he passed the entrance to the DPMA witha an obvious gun satchel, without any problem."

Having carried an anti-tank missile launcher (long story) through the streets of London and on the Underground while the IRA was active, I sometimes wonder whether "security" is just a confidence trick.

Regarding the social situation, the office is organising an occupational health survey, carried out by an external company (Wellkom). Online questionnaires have just been sent to randomly selected staff. Surprisingly (?) the number of questions concerning occupational matters is a low proportion. A very low proportion. On the other hand, the vast majority appear to relate to personal or domestic factors of healthy eating, drinking etc. Perhaps this is normal.

"The EPO enlarges itself, becomes methodised and refined and the whole, though it takes long, stands almost complete and finished in my mind, so that I can survey it, like a fine picture or a beautiful statute that I can present to the AC at a glance"

I know some colleagues who have installed on their smartphone a backwards counter to monitor the leaving date of BB.About two years from now.In the mean time the work goes on. We try to survive in the mess created by this ill advised management. With shame and disgust. Because the heart of the EPO is (still) good. Made of multi cultural, competent and very patient people. For these people, my friends, we have to maintain hope and try to save what can be saved of the working life and atmosphere at the EPO. Unfortunately this top management is only interested in short term benefits and neither in the staff wellbeing nor the european people interest. This is sad, unwise and without any issue. But these people will not last forever. Time to rebuild will come, time for justice and intelligence. La bêtise, l'énorme bêtise à front de taureau, will go back home forever and for a well deserved and extremely quiet, rest.

AC creativity may cause spark. It can be excruciating when they're rubbing two rocks together and getting again nothing. Maybe one day sitting at my desk, seeing nothing, hearing nothing, yet through the silence something throbs and gleams...a flame catches and a new era of hope sweeps through the IP world.

Well, it appears that someone has deliberately damaged Battistelli's bicycle in the office's Isar building car park (announced by VP4 internally to all staff, deploring the action which appears to have been an inside job). The brakes were tampered with too. And all this so soon after Merpel's visit... Now I may be adding 2 and 2 and making 9 lives, but until we get a katagorical denial...

Merpel can kategorically deny any involvement in such activity, which naturally she completely deplores. Not only does she lack the opposable digits that would be necessary for such tampering (scratch marks would be much more her thing) but also she understands that this action took place in a non-public part of the office, into which she would of course not scamper uninvited. She reckons she still has several lives left yet.

The president never comes at the EPO by bicycle. This story looks very strange (probably a new propaganda). The purpose is to show that the president really needs bodyguards and an investigation unit.Also, it will be a pretext to cut some additional staff (representative) heads.

Ever bike? Now that's something that makes life worth living! ...Oh, to just grip your handlebars and lay down to it, and you ripping and tearing through the Munich streets and road, over railroad tracks and bridges, threading crowds, avoiding collisions, at 40 kilometres or more an hour, and wondering all the time when you're going to smash up. Well, now, that's something! And then you arrive at the office after an hour of it... and then to think I can do it this evening all over again!.... sh..t somebody ruined my bbbbbbike!

LPY245,It was reported (on Wednesday) that it happened on Tuesday - the day that both the B28 and the Budget and Finance committees of the AC met in Munich, presumably in the Isar building? The list of suspects grows.

"someone has deliberately damaged Battistelli's bicycle in the office's Isar building car park"

The President now uses a Bike? Really? Someone who does not go around without his bodyguards, who has personal lift that cannot be used by anybody else at the main building would take the time to ride a bike to go to work? To stroll around on Sunday and mingle with the commoners in such a trivial activity?

By the way, did they also damage the bikes of his bodyguards? Or do they run behind him when e bikes around?

By the way, did they also damage the bikes of his bodyguards? Or do they run behind him when e bikes around?

I wouldn't be surprised that the bodyguards run around him, like the gardes suisses around the papamobile. (The thought of a presidential bicyclette shielded by Panzerglas in the Munich traffic just rushed through my head).

But seriously, do you honestly believe that Mr. B would ever mingle with the riff raff and risk the possibility of an encounter with one of them?

My own bike was damaged on EPO premises years and years ago, under the Shell building, as it was still called. (The parking facility was rather shoddy, you could get around the door easily by pulling the fence towards you). I don't remember this making it in the pages of the Gazette or the nascent intranet...

I suspect a sinister motive behind Topic's announcement, i.e., creating some pretext for a form of collective punishment, or inventing a new chicanery for harassing staff, or even launching a new witch hunt.

"I suspect a sinister motive behind Topic's announcement, i.e., creating some pretext for a form of collective punishment, or inventing a new chicanery for harassing staff, or even launching a new witch hunt."

Indeed, it is in the script of every respectable Dictatorship: use an attempt to the life of the Great Leader to request special powers from the Central Committee - ahem, Administrative Council, to further reduce Civil Liberties and get rid of the last Members of the Opposition.

(I also heard that in addition the Presidential Bike, the Tricycle of VP5 Raimund Lutz and the Bobby-Car of VP4 Guillaume Minnoye were also damaged ... I'm shocked to think that an International Civil Servant could act like this ...)

This only looks like a pretext for more and harsher security measures. Just wait. I suppose that in less than four weeks there will be a notice on the Intranet announcing new kinds of (ridiculous) controls etc., maybe even more hidden cameras.

Us examiners are, of course, an easy target for all-comers and as a body uniquely unable to defend ourselves. 'Twas ever thus, and to a great extent you learn to live with it.

But, barbs about our apparently cushy lifestyles aside, it needs to be said that the current situation is simply so profoundly depressing for anyone trying to do a half-decent job. We're hiring, by the way.

If there ever was any foul play (something which I mightily doubt) then the President ought to call in the police to conduct a proper investigation at the EPO, and not take matters in his own hands, or trust one of his creatures to spin some conspiracy theory.

IIRC, there are precedents where the national police was allowed to enter the EPO offices for cases of petty theft. But on the other hand, from my own experience, it is nearly impossible to get a German policeman to lift his derrière from his chair for a case of theft or vandalism involving a mere bicycle.

What does the President have to fear, if his allegations are true? He could hardly invoke his personal impunity, sorry, the EPOrg's immunity, to justify his barricading.

A version of this sordid affair could become in a few years the canvas for an episode of the dreadful "Tatort" series...

Al this leaves me with a question: Is there anybody who would know BB's bicycle from all the other bicycles present in the bicycle parking lot? Or does it carry a plate saying: I am BB's bicycle? Another question: Does he own the bicycle or is it EPO owned and is BB merely allowed to use it? If there really is really a bicycle at all..... One just wonders......

You're right, the results of the staff survey are truly appalling. The indicators of stress are almost off the scale. I wonder if the "social study" conducted by the EPO management will find any similar causes for concern?

Without wishing to diminish the importance of the study on highlighting the current plight of EPO employees, I could not help but notice a few numbers that will (or at least should) give patent practitioners cause for alarm.

In particular, it appears that only 30% of respondents believed that they were provided with the necessary time to perform their job correctly. This means that 7 out of every 10 respondents (66% of whom were from DG1) believe that they are not - at least not always - performing their job to the level that they would like. Combined with the multiple indicators pointing to concerns about a decrease in quality (e.g. over 90% of respondents believed that the importance according to quality has diminished within the last 3 years), this makes it pretty clear that practitioners are now dealing with an EPO that is marching swiftly down the road to a "quick and dirty" examination standard.

All very well, but is that what the users want? I very much doubt it - especially as examination fees have certainly not decreased in recent years.

"You're right, the results of the staff survey are truly appalling. The indicators of stress are almost off the scale."

So lets do something really, really really radical,,,something that will make the world stand up and take this nonsense seriously, once and for all. Lets organise another demonstration and walk to the French and Spanish Emabssy's in our lunch times (private transport in your CD or BN plated car entirely at your own volition and you lucky ones can always claim that VAT you spend on petrol back at the end of the year - failing that a SUEPO bus will be available )

This should make he Admin Council quake in their boots and think oh oh oh,,,,,,,,,,shouldn't it?,,,,or should we just sit and wait till the 'lovely Sun Guvnor' finally leaves?

Recent developments at the EPO are surrealistic. We have a project called "early certainty" to hire 800 examiners to tackle our backlog till 2020. We have CA56/16, which basically lets the President decide on your partner work, on any elected post one may seek, any other activity aside your work, etc... and makes it an offense to post on a public forum or to "damage the reputation of the Office". Also: the "investigation unit" is strengthened and there is a new difference betweenn dismissals for disciplinary reasons and for incompetence I do not understand. And ipkat is censored from our Intranet as "malicious source" this morning.

Dr Roy Schestowtitz posted anything he could get his hands on from ipKat and in his latest 2+2 equals a conspiracy diatribe concluded that because ,,

It was said,,,(said)

"You're right, the results of the staff survey are truly appalling. The indicators of stress are almost off the scale."

So lets do something really, really really radical,,,something that will make the world stand up and take this nonsense seriously, once and for all. Lets organise another demonstration and walk to the French and Spanish Emabssy's in our lunch times (private transport in your CD or BN plated car entirely at your own volition and you lucky ones can always claim that VAT you spend on petrol back at the end of the year - failing that a SUEPO bus will be available )

This should make he Admin Council quake in their boots and think oh oh oh,,,,,,,,,,shouldn't it?,,,,or should we just sit and wait till the 'lovely Sun Guvnor' finally leaves?

that this is even more evidence of,,,,,,bla bla bla ,,,, Muppet,,,,,,

Bet this one does not go onto his blog,,, The big smile,,,the coffee cup. Reminds me of Nigel Farage,,,,and ultimately ,,,has the same effect

Many people in the EPO are more frightened of the bullying tactics of the big Union than they are to be fired for misconduct. The newly revised investigation guidelines look quite good actually and appear to pass the test of benchmarking with other international organisations quite well as attested by a report from a senior UN official in charge of investigations there.

It's true that now you have to actually work to deserve a step and promotion in the EPO. No more presents for free just by sitting on your chair but isn't that normal everywhere else?

How many people have actually been controlled for sickness last year according to the new rules? 20 maybe? Hoe excessive for an organisation of 7000 employees!

Yeah, let's take the Porsche's, BMW's and Merc's to the demonstration at the spanish and portugese embassies. It will make a very big impression on these states so horribly hard hit by the economic crisis! It will also surely help convince them to stop their potential support for a pension or other reform for example.

Or maybe, just maybe, when you earn a salary of 120k and above net after income taxes such as most senior examiners do you really don't have so much to complain about and should accept that salary raises don't come automatically any more for nobody.

I find your post curious. On the one hand you seem to have knowledge of some "new" investigation guidelines, which seems to imply that you are an insider of some kind. On the other hand you repeat the lie that until Battistelli's "reforms" employees were paid to do nothing and promotion had a nothing to do with merit. If you are an insider you know that this is not true. Merit (productivity, quality, aptitude and attitude) had a very strong effect on promotion. Yes, seniority was taken into account as it is everywhere, to reflect experience. Nothing wrong with that. And, pray tell, where did the EPO get its former global reputation when staffed by idle good-for-nothings who just had to turn up and sit on their chairs to earn vast amounts of money.

The truth is that in the pre-BB era not only did we work hard, but we knew we were privileged, and the prevailing ethos was one of delivering the best possible quality and service to our colleagues and to the public in return for that privilege. This ethos was also supported by management. Unfortunately this ethos has been destroyed by the actions of the President. The only opposition to the destruction of the EPO is SUEPO. If it were indeed the case that all the staff care about is money then there would be no support for SUEPO's actions. You imply that EPO employees should just take the money, keep their heads down and collaborate with the destruction of everything they have dedicated their working life to.

SUEPO has no power or means to intimidate anyone. Instead the very brave few who try to fight for the EPO as it was are subject to the most fearsome sanctions.

To the previous "anonymous", Nigel Farage is usually seen with a pint of beer, not a coffee cup!

Obviously anonymous at 23:00 has not read the results of the staff survey where 0% staff (meaning not even the management) trusts Battistelli. Staff is afraid, under a lot of stress and pressure. 10% are even in psychological distress. If anonymous works at the EPO, then he does not seem to care about rights, ethics and fairness. Sounds quite like management talk to me. EPO staff were never and are certainly not lazy. They work hard and well - at least they try their best under the current situation. And they are continuously told that they achieved a lot but should produce x% more (x being 6, 10 or more...). Their efforts to maintain quality and service to the public need to be acknowledged. The SUEPO and staff rep also deserve to be praised for their work in this awful situation.

Anonymous at 23:00 hrs. is pure Battistelli- management talk to me. These thousends of people in the EPO protesting in the streets are ¨more frightened of the bullying tactics of the big Union (SUEPO) than they are to be fired for misconduct¨? What a nonsence!

The newly revised investigation guidelines look quite good actually as attested by a report from a senior UN official. Who is this person selected by team Battistelli ? A neutral person able to attest the newly revised investigation guidelines neutrally by a report? What is his name so that we know more about him.

In my many many years in the EPO we never got ¨presents for free just by sitting on our chair¨ and we were regularly assessed by director, principal director and top-management. Anonymous at 23:00 hrs should know that.

It seems that Anonymous at 23:00 hrs has not seen the reform of sick leave and invalidity which is a severe attack against both dignity and fundamental rights of people in the EPO.

Porsche's, BMW's and Merc's can not be allowed in the SUEPO demonstrations. Also the bicycle of Battistelli and the imported car of VP4 Mr Zeljko Topic are not welcome.

"Afraid of SUEPO's bullying"? Seriously? Nah. SUEPO were fairly clownish by union standards,and of course there were a couple of hotheads, but telling them to get lost was inconsequential.

However,and however irritating they could be, they still held the management to account, and it was the management's fault that they never really engaged with SUEPO.

But SUEPO, and especially some individuals within it, have stepped up to the plate and deserve respect for the way they have behaved in the face of BB's determined authoritarianism, nepotism,and dismantling of the EPO. And employees support them because of this stand,and the recognition that SUEPO is being targetted because they are tellingthe truth. No bullying required.

After a few years following the development within the EPO under Battistell(BB) as President and Jesper Kongstad (JK) as chairman of the Administrative Council (AC) I come to the conclusion that only the representatives of the big countries in the AC (NL,DE,GB,FR,CH,IT,SP) can stop this disasterous development by demanding very strongly a diplomatic conference as forseen in the EPC. BB and JK are big friends. It is the tactics of this ¨team¨ BB and the AC with chief JK and with many BB-friends in the group of representatives of the small countries, to demand from BB as AC things to do and not do and when BB is doing nothing the AC is also doing nothing. This theatre should have been stopped already a long time ago.

Meldrew,A partial explanation... Grants actually reflect work done 7-8 months previously as the decision to grant is based on the intention to grant delayed by time for translation and any amendments. Thus the current 'surge' is actually a surge taking place in early 2015.That relates to a time when Early Certainty From Search started and examiners dossier management system prioritised search over examination. With one exception! Grants could be made immediately even if they were low ranked and the system identified files which were possibly ready for grant based on the info supplied for ESOP or WOISA. In order to reach targets examiners thus took this option and, in effect, non-grantable files became secondary at best. Priority was search and grant. Examination had to wait for search deadlines (priority 1) to be met. This may change soon so the apparent surge may not continue. Indeed, at some point examiners will have to do the examinations as priorities will change. But in the meantime the examination work is skewed to grant rather than further communications, even if the applicant has amended and feels it is ready for grant the examiner must deal with highly ranked files - legal search deadlines etc. - first and is not allowed to choose lower files.

A big jump in grants will lead to a big jump in oppositions, even without any change in "quality" of decisions to grant.

Oppositions, I understand, are priority 1, even more so after the proposed changes to procedure.

And yet I am seeing an increasing number of zombie applications [more than 10 years old] being brought into examination, sometimes with an examiner amendment on a Rule 71(3) notice. How are you finding time to deal with the long tail of old applications?

I too have seen an increase in re-surfacing zombies, generally where there has been an exam report many years ago. Often the exam report just required a response to a PCT Written Opinion, in the days before the present Rule 161.

As I understand it, such zombies would be priority 2 under ECfS, above starting new examinations. Presumably this is why Examiners are able to allocate time to them.

Indeed. Those examination dossiers where the applicant would not get a refund due to a first communication already having been sent are priority 2. The first action blocking a refund is, IMHO, a trigger for a higher priority I can stand behind.Finish startes files instead of having as many started as possible, which seemed to be the priority for some of my colleagues.

If you ask for accelerated, or when the next comm. can be expected, the file is lifted up to priority 1.

IPKat Policies

This page summarises the IPKat policies on guest submissions and comments. If you have posted a comment to one of our blogposts and it hasn't appeared, it may be because it doesn't match our criteria for moderation. To learn more about our guest submissions, comments and complaints policy and the procedure for lodging a complaint click here.

Has the Kat got your tongue?

Just click the magic box below and get this page translated into a bewildering selection of languages!